McHaffie v. Wells Fargo Bank NA et al

Filing 22

ORDER deferring ruling on 6 Motion to Dismiss Complaint; granting 12 Motion to Dismiss Complaint. Ordered by Judge Clay D. Land on 06/02/2011 (ajp)***

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
RACHEL LEIGH McHAFFIE,

*

Plaintiff,

*

vs.

*

WELLS FARGO BANK, N.A.,
JOHN STUMPF, HOWARD I. ATKINS,
McCALLA RAYMER, LLC,
TONYA NOLAN, and
MELODY R. JONES,

*

CASE NO. 3:10-CV-103 (CDL)

Defendants.

*
*
*

O R D E R
Defendants

Wells

Fargo

Bank,

N.A.

(“Wells

Fargo”),

John

Stumpf (“Stumpf”) and Howard I. Atkins (“Atkins”) (collectively
“Wells

Fargo

Plaintiff’s

Defendants”)
Complaint

for

have

filed

a

insufficient

motion

to

dismiss

service

of

process

(ECF No. 12).

Although Defendants McCalla Raymer, LLC (“McCalla

Raymer”)

Melody

and

R.

Jones,

Esq.

(“Jones”)

(collectively

“McCalla Raymer Defendants”) have not raised insufficiency of
service

in

indicates

their
that

motion

they

to

also

dismiss
have

not

(ECF
been

No.

6),

served.

the

record

For

the

following reasons, the Court grants the Wells Fargo Defendants’
motion to dismiss for insufficiency of service of process, and
the Court orders Plaintiff to show cause by June 16, 2011, for
failing to properly serve the McCalla Raymer Defendants.

This

Order serves as notice to Plaintiff that failure to show cause
by June 16, 2011 may result in dismissal of the action against
the McCalla Raymer Defendants without prejudice.
BACKGROUND
Plaintiff filed this action in the Superior Court of Walton
County,

Georgia,

asserting

numerous

federal

and

state

constitutional and statutory violations allegedly arising out of
a dispossessory action following the foreclosure and sale of
Plaintiff’s

home.

After

being

served

with

process,

another

named Defendant in the action, Tonya Nolan (“Nolan”), filed a
notice

of

removal

with

this

Court.

Notice

of

Removal,

ECF No. 1.
The Wells Fargo Defendants subsequently filed the presently
pending motion to dismiss, claiming that Plaintiff failed to
effect service of process on them.

See Mot. to Dismiss Pl.’s

Compl. Attach. 2, Br. in Supp. of Mot. to Dismiss Pl.’s Compl.
5-7,

ECF

answer

No.

with

12-2.
the

The

Court

motion to dismiss.

and

McCalla
then

Raymer
filed

Defendants

the

presently

filed

an

pending

See Answer by McCalla Raymer, LLC and Melody

R. Jones, Esq. to Pl.’s Compl., ECF No. 5 [hereinafter McCalla
Raymer Defs.’ Answer]; Mot. By McCalla Raymer, LLC and Melody R.
Jones, Esq. to Dismiss Pl.’s Compl. for Failure to State a Claim
Upon Which Relief Can Be Granted, ECF No. 6 [hereinafter McCalla
Raymer

Defs.’

Mot.

to

Dismiss].

2

Although

not

asserted

as

grounds for dismissal in the McCalla Raymer Defendants’ motion
to dismiss, the McCalla Raymer Defendants raised insufficiency
of service of process as a defense to Plaintiff’s Complaint in
their

answer.

McCalla

McCalla

Raymer

Raymer

Defendants

Defs.’

raised

Answer

2.

insufficient

Since

service

the

as

a

defense in their answer—filed before their motion to dismiss,
they have not waived that defense.

See Hemispherx Biopharma,

Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th
Cir.

2008)

(“Under

[Federal

Rule

of

Civil

Procedure]

12,

a

defendant must raise any challenge to the sufficiency of service
of process in the first response to the plaintiff’s complaint;
i.e., the defendant must include the defense in either its preanswer motion to dismiss, or if no pre-answer motion is filed,
then the defense must be included in the defendant’s answer.”).
Moreover, the Court may raise insufficient service sua sponte
when

it

appears

from

the

record

accomplished within 120 days.

that

service

has

not

been

See Fed. R. Civ. P. 4(m) (“If a

defendant is not served within 120 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant
time.”).

or

order

The

that

facts

service

relating

to

follows.

3

be

made

service

within
of

a

specified

process

are

as

According

to

the

certificate

of

service

attached

to

Plaintiff’s Complaint, Plaintiff served Stumpf and Atkins “via
Certified Mail.”

Notice of Removal Ex. A Part 2 (Corrected),

Superior Court Pleadings, Certificate of Service 1, ECF No. 1-6
[hereinafter
service

Certificate

lists

Wells

of

Service].1

Fargo,

McCalla

The
Raymer,

receiving service “via Sheriff’s Service.”

certificate

of

and

as

Jones

Id. at 2-3.

The

certificate of service also includes a certified mail number
listed under the address of Wells Fargo’s registered agent and
the addresses of McCalla Raymer and Jones.

Id.

DISCUSSION
Although Plaintiff has not filed a motion to remand based
on lack of subject matter jurisdiction, Plaintiff does maintain
that

removal

Therefore,

to

jurisdiction,

of

the

action

to

assure

itself

that

the

removal was proper.

Court

will

this
it

Court
has

preliminarily

was

improper.

subject
address

matter
whether

The Court will then address whether the

Defendants have been properly served.

1

The pleadings filed in superior court include a “corrected” second
half of Plaintiff’s Complaint, which is almost identical to the
original Complaint, except that Plaintiff crossed out some of her
claims in the corrected Complaint and included additional exhibits.
Compare Notice of Removal Ex. A Part 2 (Corrected), Superior Court
Pleadings, Compl., ECF No. 1-6 with Notice of Removal Ex. A Part 2,
Superior Court Pleadings, Compl., ECF No. 1-2.
The Complaint and
Corrected Complaint both contain the same certificate of service. The
Court will cite to the corrected version.

4

I.

Removal Jurisdiction
Plaintiff

alleges

that

removal

was

improper

because

Plaintiff did not consent by signing the notice of removal.

See

Special Appearance to Challenge Jurisdiction of This Honorable
Court,

ECF

No.

15;

Special

Appearance

by

Pl.

Jurisdiction of This Honorable Court, ECF No. 18.
is without merit.

signature

of

Challenge

This argument

The non-removing party’s signature is not

required on the notice of removal.
the

to

the

attorney

The procedures only require

for

the

defendant

filing

the

notice of removal.

See 28 U.S.C. § 1446(a) (“A defendant or

defendants

to

State

court

desiring
shall

file

remove
in

any

the

civil

district

action . . . from
court

of

the

a

United

States for the district and division within which such action is
pending a notice of removal signed pursuant to Rule 11 of the
Federal

Rules

of

Civil

Procedure”);

Fed.

R.

Civ.

P.

11(a)

(“Every pleading, written motion, and other paper must be signed
by at least one attorney of record in the attorney’s name—or by
a party personally if the party is unrepresented.”).
attorney properly signed the notice of removal.
Removal 5.
Raymer

Nolan’s

See Notice of

Further, the Wells Fargo Defendants and the McCalla

Defendants

were

not

required

to

consent

to

removal

because, as explained below, they have not been properly served
in this action.
914302,

at

*4

See Johnson v. Wellborn, No. 10-12494, 2011 WL
(11th

Cir.

Mar. 17, 2011)

5

(per

curiam)

(“The

requirement that there be unanimity of consent in removal cases
with multiple defendants does not require consent of defendants
who have not been properly served.”).
irregularities
federal court.

occurred

regarding

Therefore, no procedural

removal

of

this

action

to

Moreover, the Court is satisfied that some of

Plaintiff’s alleged claims arguably arise under federal law, and
therefore, the Court has subject matter jurisdiction over this
action.

28 U.S.C. § 1331;

28 U.S.C. § 1367(a).

Accordingly,

the Court next addresses whether Defendants have been properly
served.
II.

Insufficient Service of Process
Plaintiff’s allegedly defective service occurred while the

case was still pending in the Superior Court of Walton County.
Therefore, the Court must first “look to state law to ascertain
whether service was properly made prior to removal[.]”

Freight

Terminals, Inc. v. Ryder Sys., Inc., 461 F.2d 1046, 1052 (5th
Cir. 1972).2
A.

Service of Process Prior to Removal

Plaintiff apparently maintains that she served Defendants
Wells Fargo and McCalla Raymer either through the sheriff or by
certified mail.

Notwithstanding these contentions, Plaintiff

2

The Eleventh Circuit has adopted as binding precedent all decisions
of the former Fifth Circuit handed down prior to the close of business
on September 30, 1981.
Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).

6

has produced no return of service from the sheriff demonstrating
effective

service;

nor

has

she

shown

that

she

followed

the

statutory procedures for serving these Defendants by certified
mail.

See

service

on

O.C.G.A. § 9-11-4(e)(1)
corporations);

requirements

for

service

corporations

authorized

(providing

procedures

O.C.G.A. § 14-2-1510(b)
by

to

certified

transact

mail

business

for

(providing
on

in

foreign
Georgia);

O.C.G.A. § 14-11-209(f) (providing requirements for service by
certified mail on limited liability companies).

Therefore, the

Court finds that Wells Fargo and McCalla Raymer have not been
properly served.
Plaintiff has also failed to demonstrate that she properly
served Jones, Stumpf, or Atkins.

Under Georgia law, service on

an individual must be made by serving a “defendant personally,
or by leaving copies thereof at the defendant’s dwelling house
or usual place of abode with some person of suitable age and
discretion then residing therein, or by delivering a copy of the
summons and complaint to an agent authorized by appointment or
by law to receive service of process.”

O.C.G.A. § 9-11-4(e)(7).

Although the certificate of service lists Jones as being served
“via

Sheriff’s

Service,”

the

record

fails

received service by the sheriff’s office.

to

show

that

she

To the extent the

certified mail number listed under Jones’s address demonstrates
service by certified mail, service of process by certified mail

7

is not a proper method for serving an individual in Georgia.
See

id.

(providing

individual

requirements

defendant).

for

Plaintiff’s

service

of

certificate

process
of

on

service

demonstrates that Plaintiff sent Stumpf and Atkins service of
process

by

certified

requirements
individual.
present

in

mail,

rather

than

O.C.G.A. § 9-11-4(e)(7)

complying
for

with

service

on

the
an

Therefore, the Court concludes that, based on the

record,

Plaintiff

failed

to

perfect

service

on

the

individual Defendants according to Georgia law prior to removal.
B.

Service of Process After Removal

Although

the

present

record

establishes

that

Plaintiff

failed to serve Defendants properly prior to removal, the Court
must still inquire into whether Plaintiff properly served the
Defendants after removal.

The federal removal statute allows a

plaintiff to complete service after removal:
In all cases removed from any State court to any
district court of the United States in which any one
or more of the defendants has not been served with
process or in which the service has not been perfected
prior to removal, or in which process served proves to
be defective, such process or service may be completed
or new process issued in the same manner as in cases
originally filed in such district court.
28 U.S.C. § 1448.

Accordingly,

Plaintiff

can

still

perfect

valid service under federal law after removal, notwithstanding
invalid attempts to serve the Defendants while the action was
pending in state court.

8

The present record does not show that Plaintiff has even
attempted service on the Defendants after the action was removed
to federal court.
Court

finds

Therefore, based upon the present record, the

that

attempted

service

prior

to

removal

was

ineffective, and that no service has been made subsequent to
removal.
within

Under federal law, “[i]f a defendant is not served

120

days

after

the

complaint

is

filed,

the

court—on

motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order
that service be made within a specified time.”

Fed. R. Civ. P.

4(m).

“[I]f the plaintiff shows good cause for the failure, the

court

must

period.”

extend

the

time

for

service

for

an

appropriate

Id.

Plaintiff filed this action on November 12, 2010 and it was
removed to this Court on December 17, 2010.

More than 120 days

have elapsed since this action was removed to this Court with no
service having been made.

Therefore, Plaintiff’s Complaint may

be dismissed as to the Defendants who have not been properly
served, unless Plaintiff has established good cause for failing
to serve them in a timely manner.

Regarding the Wells Fargo

Defendants, Plaintiff did not even bother to respond to their
motion to dismiss which raised improper service as a basis for
dismissal.
cause

for

Therefore, Plaintiff has failed to demonstrate good
her

failure

to

serve

9

the

Wells

Fargo

Defendants.

Accordingly, the Court dismisses the Plaintiff’s claims against
the

Wells

Fargo

Defendants

without

prejudice

for

failure

to

perfect service of process.
The Court has also found that Plaintiff failed to properly
serve the McCalla Raymer Defendants.
did

not

service,

move
and

opportunity

to

dismiss

therefore,

to

show

These Defendants, however,

Plaintiff’s
Plaintiff

good

cause

Complaint

arguably

for

for

has

failing

not

to

lack

of

had

an

serve

them.

Before dismissing Plaintiff’s Complaint on its own for failure
to serve the McCalla Raymer Defendants, Rule 4(m) requires that
the Court give notice to Plaintiff.

See Fed. R. Civ. P. 4(m).

Therefore, the Court orders Plaintiff to show cause by June 16,
2011 for her failure to serve the McCalla Raymer Defendants.
This Order shall serve as notice to Plaintiff that failure to
show

cause

for

the

lack

of

proper

service

may

result

in

dismissal of this action against the McCalla Raymer Defendants
without prejudice.
CONCLUSION
For the foregoing reasons, the Court grants the Wells Fargo
Defendants’

Motion

to

Dismiss

(ECF

properly effect service of process.
to

show

cause

by

June

16,

2011

No.

12)

for

failure

to

The Court orders Plaintiff
for

her

failure

service of process on the McCalla Raymer Defendants.

to

perfect

This Order

serves as notice to Plaintiff that failure to show cause for her

10

failure to serve the McCalla Raymer Defendants may result in the
dismissal of the action against the McCalla Raymer Defendants
without

prejudice.

The

Court

defers

ruling

on

the

McCalla

Raymer Defendants’ Motion to Dismiss (ECF No. 6).

IT IS SO ORDERED, this 2nd day of June, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

11